1. Under section 28A(1)(a) of the Estate Agents Act 1980 (Vic) (the Act), the respondent is reprimanded.
2. Under section 28A(1)(d) of the Act, the respondent's estate agent's licence is suspended for a period of six months with effect from 14 November 2016.

1. In December 2015, the Director of Consumer Affairs Victoria (CAV) applied to the Tribunal for an inquiry about Mr Joel Murray's conduct as an estate agent. That application was made under section 25 of the Estate Agents Act 1980 (Vic) (Act).
2. A hearing was held on 11 March 2016 and, on 21 April 2016, I gave reasons for findings of fact I had made about the subject matter of the inquiry.[1]
3. On 10 August 2016, I gave reasons for making determinations under section 25(1)(a) and (c) of the Act that Mr Murray had:
   • Contravened or failed to comply with the Act and the Estate Agents (Professional Conduct) Regulations 2008 (Vic) (Regulations); and
   • Been guilty of conduct as an estate agent which rendered him unfit to hold a licence.[2]
4. Having made those determinations, it was next necessary for me to consider what orders ought to be made under section 28A of the Act. That provision empowers the Tribunal to make a range of orders including to reprimand the person, to cancel any licence held by the person and to disqualify the person either permanently or for a specified period from holding a licence.
5. On 7 September 2016, there was a hearing about the appropriate orders to be made under section 28A of the Act. Mr Ventrice for CAV made submissions, as did Mr Murray.
6. For the following reasons I have decided to order that Mr Murray's licence as an estate agent be suspended with effect from 14 November 2016 for a period of six months. I have also decided he is to be reprimanded for his conduct.
7. Attachment A to these reasons is a summary of the findings of fact I made after the 11 March 2016 hearing and the determinations I made on 10 August 2016. They set the factual and legal context for this decision and should be read with these reasons.

1. The parties made submissions about the guiding principles to be applied to making orders under section 28A of the Act.
2. In summary, when considering what orders ought to be made under section 28A of the Act, the Tribunal is required to take into account the following propositions:

• The Tribunal's powers to make disciplinary orders are primarily protective, even though they may have a punitive effect on the particular agent;
  • When considering whether a person should continue to work as a licensed estate agent, there are two matters raised which focus on the public interest: the protection of the public and the necessity of maintaining standards in the conduct of the profession. A very high standard of care, compliance and honesty is required for estate agents;
  • The Tribunal is to have regard to specific deterrence and general deterrence when making orders. In respect of the latter, the Tribunal should consider the effect its orders will have on agents' understanding as to the requirements and the standards expected, to prevent others from engaging in similar misconduct in the future. Agents who do not deal with trust accounts according to the law need to know that serious consequences for their participation in the industry will follow. Other matters to take into account are the risk of repetition of the same conduct and the agent's level of insight into the conduct in issue;[3]
  • While other cases may provide some guidance, each case must be decided on its own facts and circumstances; and

1. A reprimand is not a trivial determination and has the potential for serious adverse implications.[4] It tells the public and other estate agents that the standards expected have not been met and that the agent has been censured.
2. Mr Murray largely agreed with the matters to be taken into account. Mr Murray submitted that greater emphasis should be given to protection of the public rather than on any punitive element of orders. He was concerned about what he saw as undue reliance placed by CAV on other Tribunal decisions and contended that emphasis ought to be placed on the particular circumstances of this case.
3. It is convenient to note here that it is not my task to make orders that address the events that were the subject of the earlier Tribunal hearing in 2015. While those events are relevant to the background to this proceeding and may inform matters such as the risk of repetition of the same or similar conduct and/or Mr Murray's insight into the conduct before me, the orders may not impose any further penalty for the earlier conduct.

1. CAV submitted that the Tribunal should make orders under section 28A reprimanding Mr Murray, cancelling his estate agent's licence and disqualifying him from holding a licence for a period of five years.
2. In support of those submissions, CAV relied on the following matters.
3. First, CAV said the Tribunal ought to have regard to the nature and seriousness of the conduct. Here it emphasised the importance of the proper maintenance of trust accounts and proper auditing. It noted that I had found that compliance with the condition earlier placed on Mr Murray's licence regarding trust account audits must be regarded as imperative. It noted that I had disagreed with the proposition that failure to comply with the trust account audit provisions of the Act was at the lower end of the scale of unprofessional conduct and that I did not accept that Mr Murray's failure to comply with the requirements was a case of neglect. While CAV accepted that the conduct was not of the worst kind an estate agent might engage in, it ought to be characterised as being at the higher end of the scale of seriousness in all the circumstances.
4. Second, CAV noted that I had found that at no stage had Mr Murray demonstrated that he appreciated the obligation to comply with the auditing requirements of the Act, as contained in section 64, was absolute and not subject to his personal circumstances. Further I found that Mr Murray continued to believe that his conduct was justified.
5. Third, CAV referred to Mr Murray's previous disciplinary history and noted that the conduct which led to the present proceeding was engaged in within a month of the earlier inquiry which resulted in a condition being placed on Mr Murray's licence.
6. Fourth, CAV discussed Mr Murray's conduct in the time between the offences and the hearing. It noted I had made comments and findings about:
   • The late preparation and delivery of the audit report for the 2014/2015 financial year in breach of section 64 of the Act;
   • Mr Murray's failure to send to CAV a copy of the letter he said he wrote in order to comply with the licence condition even after being made aware that CAV had recommended he do so;
   • Mr Murray's failure to inform CAV about the events Mr Murray relied on to explain his conduct until the morning of the hearing of the inquiry; and
   • Mr Murray's capacity to attend to his statutory duties as to audits earlier.
7. Fifth, CAV noted that Mr Murray had given evidence about potentially mitigating circumstances. In particular, evidence was given about a miscarriage Mr Murray's wife had in early September 2015 and a subsequent difficult pregnancy - these matters are referred to me as the 'context matters'. CAV referred to my finding that the context matters did not provide an explanation or excuse for his failure to attend to his audit obligations and my finding that there were no other surrounding circumstances which required consideration.
8. Sixth, CAV contended that there was a real risk of repetition of the same or similar conduct in the future. In support of this contention, CAV relied on:
   • The fact that Mr Murray had not caused his trust accounts to be audited in compliance with the Act for six consecutive years up to and including 2015. It noted that Mr Murray had only ever completed the required trust account audit on time 10 years ago in 2007;
   • The short period of time between being reprimanded for the failure to have the trust account audited, having a condition placed on his licence in respect of trust account audits and having his licence suspended for three months and committing a further breach of the same statutory obligation. The time between those events was nine days - the earlier inquiry orders were made on 22 September 2015 and, as at 1 October 2015, Mr Murray had failed to produce audited accounts for the 2014/2015 financial year; and
   • Mr Murray's failure to demonstrate insight into the nature of the breaches and their seriousness.
9. CAV contended that I could not take comfort that Mr Murray's conduct was out of character or that this proceeding would deter Mr Murray from engaging in the same or similar conduct again or that he had learnt the error of his ways. CAV contended that the only conclusion to be drawn was that there is a very real and substantial risk Mr Murray will repeat the conduct in the future, particularly if he had to again endure a degree of personal hardship.
10. Turning to the determinations made under section 25, CAV contended that, where a finding had been made that Mr Murray was unfit to hold a licence, Mr Murray ought not to be entitled to hold a licence, unless there was evidence that the factors which led to that determination had been addressed. CAV contended that there was no such evidence before me and so Mr Murray should not be eligible to hold a licence.
11. CAV submitted that a reprimand was appropriate in this case. It also contended that Mr Murray's licence should be cancelled as a means of providing specific deterrence to Mr Murray and general deterrence to other estate agents. CAV contended that a period of suspension was not appropriate given that Mr Murray had been suspended in 2015 and engaged in the same conduct a very short time later. Further Mr Murray engaged in that conduct when he was subject to a condition imposed on his licence by this Tribunal. While Mr Murray gave evidence about the harm the suspension period did to his business and family, he nevertheless engaged in the same kind of conduct soon after. CAV contended these matters meant that the seriousness of the conduct required more than a period of suspension in order to protect the public.
12. CAV submitted that Mr Murray's lack of insight ought to be at the forefront of my consideration because it is relevant to the risk of repetition. This was said to be relevant to whether I ought to cancel Mr Murray's licence and impose a period of disqualification, rather than only suspend the licence.
13. CAV contended that I should place minimal weight on the context evidence Mr Murray gave and that it ought only be relevant, if at all, to the period of disqualification.
14. Referring to other decisions of the Tribunal,[5] CAV submitted a period of five years disqualification from applying for another licence was appropriate given the specific circumstances of this proceeding, including Mr Murray's earlier disciplinary history and the short time between those and the further breaches. Also, CAV contended that a five year period would signal to Mr Murray and the estate agency industry that the conduct is not only unacceptable but will also lead to very serious consequences. It follows that CAV submitted that the licence conditions proposed on behalf of Mr Murray in written submissions made in respect of the section 25 determinations were inadequate or otherwise inappropriate.

1. As indicated above, in advance of my decision on the determinations to be made under section 25 of the Act, Mr Murray had sent to the Tribunal written submissions prepared by a solicitor and barrister. They included submissions as to appropriate orders under section 28A of the Act. Mr Murray maintained that they set out an appropriate course of action for the Tribunal to adopt.
2. The submission was that conditions ought to be placed on Mr Murray's licence as follows:
   1. A condition prohibiting Mr Murray from being an officer in effective control of the estate agency business of a corporation for a period of 12 months; or
   2. A condition prohibiting Mr Murray from receiving trust moneys or opening or maintaining a trust account for a period of 12 months; or
   3. A condition requiring Mr Murray to undertake further education by way of mentoring by a real estate agent, chosen by CAV, for a period of 12 months.
3. Mr Murray made submissions in response to the matters raised by CAV. I gave Mr Murray an opportunity to give evidence about the insight he had gained and any other matters he considered might be relevant to the orders to be made. Mr Ventrice was given the opportunity to cross-examine Mr Murray about that evidence.
4. Taking the evidence and submissions together, it was Mr Murray's primary contention that the life events which had led to the breaches which were the subject of this proceeding had now ended and he and his family were well and settled. The matters which led to me finding he was not fit to hold a licence had been addressed in that the surrounding circumstances were now historical and well behind him. Accordingly, there was no real risk of repetition of breaches of the Act.
5. Further, Mr Murray denied that he lacked insight into the relevant matters. He explained that the earlier suspension and these proceedings had affected him greatly. He referred to the loss of income and the difficulty he had supporting his family - he described the earlier suspension as having 'decimated' his business. He said that would assist him not to breach any of his obligations again as he understood better than most agents how serious an impact a suspension can have.
6. In his evidence, Mr Murray said that he understood the need for estate agents to be able to be trusted given they deal with large amounts of money and important transactions. He appreciated why it was necessary for there to be a high level of accountability and that the reasons for checks and balances being done in a timely manner were obvious - that gave the public confidence. Mr Murray gave evidence he understood the purpose of the audits and how a failure to lodge audit reports could mean that harm could occur which would go undetected. Mr Murray could not say why it was that this insight had not come across to the Tribunal at the earlier hearing.
7. Mr Murray stated he was not proud he had failed to do what was required of him in respect of the trust account. He described himself as an honest and efficient person who had tried to do the right thing and be dependable. He said he was disappointed with himself, including because he did not have a better reason for what he had done. He stated that these events had undermined everyone's confidence in him. Mr Murray said that telling clients he had been suspended brought the seriousness of what had occurred home to him. Mr Murray said that, when he was labouring to earn an income during the period he was suspended, he reflected on all of these matters. Mr Ventrice asked in cross examination, if that was the case, why Mr Murray did not take steps to ensure that he completed the audit report due soon after the suspension period commenced and to provide the required letter to CAV? Mr Murray said he could not recall why he did not act then. He said that looking back it was blatantly obvious that he should have acted straight away.
8. I noted to Mr Murray that he had not made any comments about the fact that he had failed to comply with a condition imposed by the Tribunal. He stated he included that in what he had said regarding his failures in respect of the audits and that he was 'acutely aware' of the wrong he had done.
9. Mr Murray stated that, if the proposed conditions as set out above were not acceptable, he would ask that a period of suspension be imposed rather than cancellation. That was on the basis that more is required to be done to obtain a new licence after cancellation. He contended that the public was equally protected by suspension as compared to cancellation. A decision to suspend his licence would meet the requirements of protecting the public, applying some level of punishment to him and demonstrating to the industry that his conduct was not acceptable. He emphasised the fact that no finding of dishonesty or improper use of funds had been made.
10. Mr Murray continues to be the sole employee in his estate agency business and he stated that, if his licence was cancelled, he would have to sell the business. He also stated that, even three months out of work may lead to him losing his house.

1. In considering what orders ought to be made under section 28A of the Act, I have been mindful of the following matters:
   • The factual findings I made;
   • The determinations made under section 25 of the Act, including the findings that Mr Murray had engaged in unprofessional conduct and had been guilty of conduct as an estate agent which rendered him unfit to hold a licence;
   • As at the hearing on 7 September 2016, Mr Murray had failed to meet his obligations in respect of his trust account audits for five consecutive years with the last occurring within two weeks of his licence being suspended for three months in September 2015;
   • Mr Murray breached a condition imposed on his licence by this Tribunal in respect of his trust account audit obligations;
   • The purpose for disciplinary orders as discussed above in paragraph 9 with a particular focus on the protection of the public and the maintenance of the standards which are expected of licenced estate agents. For an officer in effective control those include exercising all due skill, care and diligence and acting consistently with the law and good estate agency practice;[6] and
   • The fact that no allegations of dishonesty or improper dealings with trust funds or the account have been made.
2. Having regard to the purpose of a reprimand and my findings about Mr Murray's conduct, it is appropriate that Mr Murray be reprimanded and I will so order.
3. I am not persuaded that ordering conditions on Mr Murray's licence would be appropriate or adequate. That is because, in September 2015 the Tribunal took that course of action and within two weeks Mr Murray had again failed to meet his statutory obligation to have his trust account audited. Within around a month he had failed to comply with the licence condition which had been imposed. When alerted to these matters by CAV, Mr Murray took no steps to comply or to seek additional time or to explain the nature of the difficult circumstances he was then dealing with.
4. There is an absence of evidence to show that Mr Murray has made changes to his business or otherwise explained how the proposed conditions would operate in practice. As he operates his business alone, there is no other person to share or delegate the responsibility for compliance.
5. I am not satisfied that these circumstances warrant Mr Murray being given a further opportunity to continue to hold an estate agent's licence even subject to conditions of the kind suggested.
6. I am not persuaded that cancellation of Mr Murray's licence is appropriate or necessary. Cancellation may be warranted in cases where there is a demonstrable need for the public to be protected. It may also be open where the estate agent's conduct was so egregious that, in order to maintain standards and ensure that the individual agent and others are deterred from engaging in similar conduct, cancellation is the appropriate order.
7. While non-compliance with the trust account obligations in the Act risks client's funds and interests being compromised, there is no evidence in this case that risk was realised or that there was a real likelihood of the risk being realised. I have given significant weight to the fact that no allegations of dishonesty or improper dealings with trust funds or the account were made. There is no suggestion that at any time Mr Murray dealt improperly with his client's funds or contrary to their interests or engaged in any other kind of improper or unsatisfactory behaviour.
8. I accept the submission that it would seem that Mr Murray's earlier three month suspension did not deter him from engaging in the same conduct again. I have found that Mr Murray's then circumstances did not justify the further breach of section 64 or his failure to comply with the condition imposed by the Tribunal. Mr Murray was unable to adequately explain why he did not act to protect his interests, even after being contacted by CAV in 2015 and even though the three month suspension had a very significant impact on his business and personal circumstances.
9. While that is in many respects unsatisfactory, I accept Mr Murray's evidence given on 7 September 2016 that, looking back, he cannot understand why he acted as he did and why he did not seek assistance or more time. I accept he is disappointed in himself and considers the conduct to have been inconsistent with his usual conduct and his personal standards. While I have found that the context matters did not excuse Mr Murray's conduct, I accept that those were his subjective reasons for engaging in that conduct.
10. While I remain concerned about the completeness of Mr Murray's insight into his responsibilities as an estate agent, particularly when managing personal challenges, that is not a sufficient cause for cancellation in my view. I do not accept the proposition that the risk of repetition can only be addressed by cancellation of the licence.
11. Mr Murray stated at the hearing that, if he was unable to work for even three months, he would face very serious financial challenges. He referred to losing his home and the potential need to sell his business. While I would hope those eventualities do not occur, I am aware that, for a sole employee of an estate agency, an inability to work will inevitably have a punitive effect and may lead to the loss of a business and livelihood.
12. I accept that Mr Murray's current circumstances are improved and that his life, including his personal life, is more settled. His baby son is healthy and his family is progressing well. I accept that Mr Murray demonstrated at the hearing before me on 7 September 2016 that he now has an appropriate appreciation of the serious nature of his breaches of the Act. That would seem to be because his personal circumstances have allowed him to more fully reflect on what has occurred in the last 12 or so months.
13. On the evidence before me, an order cancelling Mr Murray's estate agent's licence, would likely lead to the loss of his business and may mean he is unlikely to be able to continue in the estate agency business. I consider that such an outcome coupled with the weight to be attached to a cancellation exceeds what is required for specific deterrence. The punitive effect of such an order, even for a period of less than five years, would outweigh the need to protect the public from Mr Murray. I agree with Mr Murray's submission that, in his case, a cancellation order would not offer better protection to the public than a suspension.
14. In considering the period of suspension, I have taken into account Mr Murray's circumstances in and around September 2015. While I have not accepted that the context matters excuse Mr Murray's conduct, I accept the contention that is a matter to be considered in respect of the period of time he ought not to be entitled to work as an estate agent.
15. I consider that, having regard to the significance of a reprimand and the practical consequences attached to a suspension, the need for general deterrence is met in this case by an order for suspension for a period of six months. My findings made plain that Mr Murray's conduct was unacceptable and that serious consequences would follow. A six month suspension for a sole operator of an estate agency is a very serious consequence.

1. For these reasons and balancing all of the matters required to be considered by the Tribunal, I have decided that Mr Murray's licence will be suspended

for a period of six months. I will allow a period of one month for Mr Murray to make the necessary arrangements to refer his current clients to other agents and to attend to his financial and administrative affairs.

1. This inquiry arose out of Mr Murray's failure to comply with a condition placed on his estate agent's licence after an earlier inquiry.
2. The earlier inquiry was conducted in September 2015 and concerned Mr Murray's failure to have his trust accounts audited for the financial years in the period 2010 to 2014 as required under the Act. The Tribunal (differently constituted) found that Mr Murray had contravened the requirement for trust account audits contained in section 64 of the Act five times and that, by so doing he had failed to exercise due care, skill and diligence in performing his functions as an estate agent and had engaged in conduct that was unprofessional.[7] The Tribunal ordered that Mr Murray be reprimanded, that his estate agent's licence be suspended for a period of three months and that a condition be placed on his licence. The suspension expired on 19 January 2016.
3. The condition was that, on or before 19 October in each of 2015, 2016 and 2017, Mr Murray was to notify CAV in writing whether or not he had complied with his trust account audit and lodging requirements under section 64 of the Act in respect of the previous financial year (licence condition).
4. CAV made this further application because it said Mr Murray failed to have his trust account audited in 2015 as required by section 64 and he breached the licence condition because he did not notify CAV about his compliance with the audit obligation by 19 October 2015.
5. After the hearing in 11 March 2016 at which I heard evidence from an officer of CAV, Ms Chantel Alicia Drysdale and Mr Murray, I made findings of fact as recorded in my reasons dated 21 April 2016. Those findings may be summarised as follows:
   • Mr Murray did not, within three months of the end of the 2014/2015 financial year, cause his trust account to be audited. The trust account audit was completed on 10 March 2016;
   • Mr Murray was aware of the obligation to comply with section 64 of the Act and he was also aware that a failure to comply could be accompanied by serious consequences;
   • The time required to undertake and complete the trust account audit was approximately one day;
   • Mr Murray sent by post a letter dated 15 October 2015 to Mr Ventrice, CAV's representative in both proceedings. That letter would have complied with the licence condition as Mr Murray stated in it that he had not as yet lodged the audit report;
   • On 13 November 2016, Mr Murray was aware that his letter dated 15 October 2016 had not been received by CAV. Despite his own understanding that Ms Drysdale had strongly recommended that he email a copy of the letter, Mr Murray did not take any step to do so or otherwise ensure that CAV held a copy of the letter at a date earlier than 11 March 2016. That letter had not been seen by any representative of CAV before the hearing before me on 11 March 2016;
   • In early September 2015, Mr Murray's wife had a miscarriage and they were both very distressed by that event. I accepted that there would have been a period of grieving afterwards. There followed another pregnancy which was said to be very difficult with Mr Murray's wife suffering from nausea and illness throughout. These matters are referred to by me as the 'context matters';
   • Mr Murray made no mention of the recent miscarriage to Mr Ventrice or any other CAV representative on 22 September 2015 at the hearing of the first inquiry. Mr Murray did not inform Ms Drysdale of the context matters on 13 November 2015 when they spoke about the audit report he had not lodged for the financial year ending 30 June 2013. Mr Murray did not inform Mr Ventrice or any other representative of CAV of the context matters at any time before the morning of the hearing before me on 11 March 2016;
   • The evidence before me did not allow me to accept Mr Murray's wife's ill health was such that, during the whole of the period late September 2015 to early March 2016, he was unable to apply himself to the task of preparing for the required audit. I was similarly unable to find that Mr Murray's work and other family commitments reduced his capacity to comply with section 64; and
   • The evidence did not allow me to accept that Mr Murray was, due to his personal circumstances as described in the evidence, unable to attend to his statutory duty earlier than March 2016. In particular, I did not accept that the context matters, including Mr Murray's wife's illness, explained or excused Mr Murray's failure to ensure the trust account was audited by 30 September 2015.
6. On the basis of those factual findings, I found that CAV had proven that:
   • Mr Murray breached section 64 of the Act as he had failed to cause his trust accounts to be audited by 30 September 2015;
   • By not providing written notification to CAV by 19 October 2015 about the audit for the 2014/2015 financial year, Mr Murray breached section 21A(2) of the Act which requires a licensee to comply with conditions on a licence; and
   • By failing to comply with section 64(1) and with the licence condition, Mr Murray contravened regulation 13(2) of the Regulations by engaging in conduct that was unprofessional.

Determinations under section 25(1)(a) and (c)

1. Mr Murray did not dispute the finding that he had breached provisions of the Act and Regulations. Accordingly, on 10 August 2016, under section 25(1)(a) of the Act, I determined that Mr Murray had contravened or failed to comply with the Act and the Regulations.
2. There was a dispute about whether, under section 25(1)(c) of the Act, Mr Murray had been guilty of conduct which rendered him unfit to hold a licence.
3. After having regard to:
   • The particular conduct in issue;
   • The circumstances in which that conduct was engaged in, including the holding of the previous inquiry, the previous proven breaches of the Act and the condition placed on Mr Murray's licence by this Tribunal; and
   • Mr Murray's lack of insight into the significance of that conduct at the time he engaged in it and since,

I determined that Mr Murray had been guilty of conduct as an estate agent which rendered him unfit to hold a licence.

[1] Director of Consumer Affairs v Murray [2016] VCAT 612.

[2] Director of Consumer Affairs Victoria v Murray (No 2) [2016] VCAT 1333.

[3] See generally, Mario Inglese and M Inglese Pty Ltd and Estate Agents Board, Supreme Court of Victoria, 15 August 1989; Quinn v Law Institute of Victoria Limited [2007] VSCA 122; Director of Consumer Affairs Victoria v Marshall [2013] VCAT 1316, Director of Consumer Affairs Victoria v Talia [2010] VCAT 1107; Director of Consumer Affairs Victoria v Rounds [2013] VCAT 1882; Acting Director of Consumer Affairs v Moularas [2014] VCAT 474.

1. [4] Peeke v Medical Board of Victoria, Unreported, Supreme Court of Victoria, 19 January 1993 at p 6 - while this case concerns a medical practitioner, given the responsibility estate agents carry in respect of funds and their responsibility to act honestly, those serious adverse implications equally apply to the estate agency industry.

[5] Director of Consumer Affairs Victoria v Marshall [2013] VCAT 1316; and Department of Consumer Affairs Victoria v McDonald [2015] VCAT 1625.

[7] Proceeding Z188/2015, findings and orders made on 22 September 2015.